October 07, 2006

A Different Sort of Appellate Brief

The Federal Circuit has issued a couple of opinions recently that, in my view at least, contain commentary unnecessary to the decision that seems aimed at justifying its "teaching, suggestion, motivation" test for obviousness, a test currently before the Supreme Court in the KSR case. This opinion (Download 061088p.pdf) in DyStar is a good example, especially pages 17-22. I don't recall seeing such circuit opinions before. Does anyone else? Any thoughts on the practice, assuming my characterization is correct?

Comments

A Different Sort of Appellate Brief

The Federal Circuit has issued a couple of opinions recently that, in my view at least, contain commentary unnecessary to the decision that seems aimed at justifying its "teaching, suggestion, motivation" test for obviousness, a test currently before the Supreme Court in the KSR case. This opinion (Download 061088p.pdf) in DyStar is a good example, especially pages 17-22. I don't recall seeing such circuit opinions before. Does anyone else? Any thoughts on the practice, assuming my characterization is correct?